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In Sham Wing Kan v Commissioner of Police  6 HKC 265, the Hong Kong Court of First Instance clarified the scope of police search powers in relation to smartphones, which is especially pertinent in an age where smartphones have been a primary mode of communication and data storage. Section 50(6) of the Police Force Ordinance (Cap. 232) allows officers “to search for and take possession of… any other article or chattel” found on an apprehended person or about the place at which he has been apprehended, if the officer reasonably suspects it to be of value to the investigation of any offence that the person has committed or is reasonably suspected of having committed.
The applicant applied for judicial review, mainly seeking a declaration that section 50(6) does not authorise police officers to conduct warrantless searches into the digital contents of mobile phones. In the alternative, the applicant sought a declaration of unconstitutionality on grounds that section 50(6) infringed his right to privacy guaranteed by the Bill of Rights Ordinance and the Basic Law.
The HKCFI mainly found that section 50(6) indeed authorises a police officer to conduct a warrantless search of the digital contents of mobile phones, but only in exigent circumstances. On the question of constitutionality, the HKCFI recognised that mobile phones should be subject to significant privacy constitutional protection given their similarities to personal computers where massive and extensive personal data and information can be stored in and accessed through. Therefore, section 50(6) must satisfy the proportionality test and be guided by ‘legal procedures’ in order to be lawful since it interferes with the right to privacy.
Because of the finding that section 50(6) authorises a police officer to conduct a warrantless search of the digital contents of mobile phones only in exigent circumstances, HKCFI concluded that section 50(6) satisfies the proportionality test. With reference to relevant case law, the Court then defined exigent circumstances as those where an urgent search may (a) prevent an imminent threat to the safety of the public or police officers, (b) prevent imminent loss or destruction of evidence, or (c) lead to the discovery of evidence in extremely urgent and vulnerable situation. HKCFI further held that this guidance from case law as to what constitutes exigent circumstances satisfies the requirement under the Basic Law that the intrusion on privacy was done in accordance with ‘legal procedures’.
For more information on the topic of law enforcement, please see:
Halsbury’s Laws of Hong Kong – Police and Emergency Services
Annotated Ordinances of Hong Kong – Police Force Ordinance (Cap. 232)
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